Over the past three decades human rights movements in India have persistently interrogated systems of criminal justice in the country. The concerns have ranged from addressing the problem of arbitrary detention during the emergency to constructing entire communities as criminal thereby justifying forced dispossession and/or mass violence. While overt violence by state actors and their complicity in violence by dominant private actors has been a major concern, there has also been the problem of the abdication by the state with respect to provision of the means for bare life to a majority of the people, the denial of the right to bare life compounding their vulnerability to a repressive rule of law. There is a widespread acceptance of the fact that the law is unequal especially in terms of access to and delivery of justice, inequality of process negating the fundamental guarantee of equality.
This collection of essays re-examines the field of criminology through an interdisciplinary lens, challenging in the process unproblematic assumptions of the rule of law and opening out avenues for a renewed and radical restatement of the contexts of criminal law in India. This collection is a significant step towards mapping the ways in which interdisciplinary research and human rights activism might inform legal praxis more effectively and holistically. The contributors are a diverse group – widely respected activists, bureaucrats, scholars, and professionals – who share concerns on criminal justice systems and the need to entrench human rights in the Indian polity.
Chapter 15: Crimes, Passion and Detachment: Colonial Foundations of Rule of Law
Crimes, Passion and Detachment: Colonial Foundations of Rule of Law
- A desires a Court to give judgement that B shall be punished for a crime which A says B has committed.
A must prove that B has committed a crime.
- A desires a Court to give judgement that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true.
A must prove the existence of those facts.1
These seemingly simple, self-evident, and extraordinarily mischievous lines were among the formulations that laid the ground of rational rule by the colonial authorities in India. They are appended at the end of Section 101 of the Indian ...